Judging as Realpolitik

As the controversies surrounding the nomination of Brett Kavanaugh, President Trump’s second nominee to the Supreme Court, continue, the nomination – aside from the allegations of misconduct recently brought against him- brings once again to the fore the question of the place of the rule of law in the decisions of the Supreme Court. In the abstract, Kavanaugh would seem to have been an unexceptionable choice. He is a judge on the same bench as the late Justice Antonin Scalia, Justice Ruth Bader Ginsburg, Chief Justice John Roberts, and Justice Clarence Thomas. The three hundred or so opinions that Kavanaugh wrote as an appellate judge are models of lucidity, elegance, and common sense, and demonstrate a brilliant fidelity to the rule of law.

However our jurisprudence is no longer devoted to the rule of law. One of our political parties, in fact, is committed to something very different for the judiciary, and the members of that party are prepared to fight with all the resources at their command to prevent Kavanaugh or a similar candidate from being confirmed. If he or another conservative judge is confirmed, to take the place of the rather unprincipled retiring Justice Kennedy, for the first time in memory, the Court may have a majority of solid conservatives.

The opposition ostensibly stems from the fear that a Court on which another conservative sat as a member of the majority would overrule the cherished liberal precedents of the past six decades, including, in particular, the decisions finding in “penumbras and emanations” of the Bill of Rights, a Right to Privacy guaranteeing women a right to abortion before fetal viability (Roe v. Wade, 1973), a right to engage in consensual sodomy (Lawrence v. Texas, 2003), and a right for single-sex couples to marry (Obergefell v. Hodges, 2015). In a sensible country, where law was divorced from politics, this might actually be a rational fear, because each of these three decisions, and many others in the last six decades rendered by the Justices, are hardly models of legal analysis, and, indeed, it could be strongly argued (as sensible dissenting Justices have in each case) that these matters are assigned by the Constitution to the states, and the federal Justices have no business trenching on their prerogatives.

But, again, this is not a sensible country, and law cannot be divorced any longer from politics. Because the Chief Justice of the United States Supreme Court, John Roberts, is now understood to wish to avoid political firestorms, it is likely that he would not furnish the fifth vote for overturning any of these three decisions, and these three dubious precedents will stand for the foreseeable future. The brouhaha over Kavanaugh is, then, much more about the Democrats and the Republicans ginning up their bases for the upcoming Congressional elections, and much less about any serious reflection over what Supreme Court Justices ought to be doing when they review cases.

Indeed, after reading the book here under review, one is left wondering whether anyone is actually engaged in serious reflection on the Court and its task. There are a few positive things one can say about this work, and I will strive to do so, but if one is a committed conservative who believes that law is different from politics, that the only appropriate jurisprudential perspective for a Supreme Court justice is fidelity to the original understanding of the Constitution and laws (a perspective shared by the late Justice Scalia, by the recently appointed Justice Gorsuch, by Justice Thomas, probably by Justice Alito, certainly by Judge Kavanaugh, and by your author), then this little book will horrify you.

A good dose of horror in a film, for example, can be a positive experience, especially when you leave the theater and realize it was only a movie, and life is actually much better than what you’ve just seen at the cinema. And if the two quite astute lawyers who wrote this book meant it as a cautionary fable, they would have performed a worthy public service. I suspect, though, that they are deadly serious, and they are scary indeed.

Their basic premise is that judges (the title of the book is “Judges,” but it would better have been “Justices,” since almost all of their analysis is devoted to members of the United States Supreme Court) ought to behave in the manner of Italian Renaissance autocrats. They have ingeniously patterned their work after the great political treatise by the great Florentine, Niccolò Machiavelli, whose Prince (their model) is a handbook for would-be rulers. Machiavelli’s famous (or, if you prefer, notorious) little screed was a work of political hardball, of hard-headed realism, in which he explained that it is much better for a Prince to be feared than loved, that Princes need not strictly adhere to the truth or keep their promises if doing so prevents them from achieving power or conquest, and that, indeed, morality really has little or no place in statecraft, where the possession, acquisition, and use of power is everything.

The simple, and daring, and terrifying thesis that Messrs. Collins and Skover have proposed is that Justices ought to learn from The Prince, and that any Justice seeking true greatness ought to institute its lessons. Thus, for example, they champion hypocrisy and duplicity in the achievement of a seat on the Court, and fault Robert Bork because he was too honest about his conservative jurisprudence. Their advice to one up for confirmation to a seat on the Court: “Be scripted, evasive, polished, repetitive, polite, trite, and also be as engaging as possible—those are the skills that must be mastered in a post-Bork confirmation world.”

The authors point to a few Justices who can serve as models. One is the great early Chief Justice John Marshall, whom they credit (wrongly, in my view) with the establishment of Judicial Review, and who they say was a brilliant political strategist because he refused to recuse himself from a case in which he had an obvious conflict of interest (Marbury v. Madison, 1803, which was over a commission Marshall himself had failed to deliver when he was Secretary of State), yet, nevertheless, Marshall held that his court had no jurisdiction, and thus the Court avoided a confrontation with Jefferson while promulgating the doctrine that it was the job of the Court to say what the law was, thus establishing its power over Congress and the Executive.

Our authors believe that Justices must think for themselves, and yet to do so a Justice “must learn to lie and to cloak his or her will in terms fitting the conscience of colleagues.” The authors are bracingly unsparing in their judgments on the Justices. Felix Frankfurter (once the ideal Justice at the Harvard Law School because of his philosophy of judicial restraint and deference to the elected branches of government) in their eyes was a “disaster” because he was a failure in terms of the “politics of personality” and could not persuade his colleagues to adhere to his views. They are similarly critical of Antonin Scalia, for alienating his colleagues because he was too egotistical. “[A] Justice must be hypocritical,” they inform us, “and strive to appear objective, judicious and collegial,” while at the same time pushing his or her particular personal political agenda.

They are unsparing in their criticism of conservative adherents to the rule of law both on and off the Court. Of Herbert Wechsler, a champion of what he called “neutral principles,” and one of the greatest defenders of the notion that a Justice ought to be something more than an arbitrary unelected ephor, they state, “Critical comments such as those of Herbert Wechsler may be fine pedantic academic musings, the kind savored in ivory towers. But they reveal a disquieting ignorance of the realism of judicial decision making, one that demonstrates why such counsel should be ignored.” This is said in defense of the freewheeling jurisprudence of Earl Warren and William Brennan, liberal heroes who largely made up the law as they went along, without regard to the niceties of adherence to precedent or solid grounding in the Constitution. They praise, as well, Justice Kennedy for his decision in Obergefell, as they state that Kennedy was able “to grasp the jurisprudential prize to ensure his lofty place in gay rights history.” It simply does not bother the authors that there were no discernable legal principles in some of Kennedy’s decisions; for them he was a hero because, “Unlike the late Justice Antonin Scalia, Justice Kennedy is not formulaic; he is fluid.” If this is judging, it’s not, to paraphrase Mencken, what judging was when I was young.

It is clear that the authors favor liberal outcomes in cases, but, to their credit, they are astute lawyers, and their doctrinal analysis is sound, and so are some of their harsher comments on Justices who waste the time of Court and counsel at oral arguments. Of Justice Breyer, whose jurisprudential views are probably the same as theirs, they nevertheless write that he fails to grasp that “A courtroom is not a classroom. While his dizzying displays of Socratic talent may be well suited for teaching purposes, they can be quite counterproductive for purposes of oral arguments in the Supreme Court.” And while Kennedy’s outcomes please them, while they praise him [and Roberts] for being, unlike Frankfurter and Scalia, “collegial jurists; they are gentlemen who care about the Court and their colleagues …”, they nevertheless devastatingly (and accurately) observe of Kennedy that “Here is a man who could stare in the water and fall in love with the image.” Even so, they grudgingly concede that Kennedy’s “mish-mash form of jurisprudence has had some measure of real success.”

The authors are Ur-realists, and success, power politics, and logrolling are, for them, the only things that count. There is much that can be learned from this book, in the same way that a horror film can instruct you in what dangerous situations to avoid, but “mish-mash” jurisprudence is hardly a noble undertaking. The authors’ heroes are nearly all liberals, and, to a great extent, they simply affirm the liberal orthodoxy, as they do, for example in praising Oliver Wendell Holmes as their absolutely greatest Prince-like Justice. The man who became famous for suggesting that “the life of the law is not logic, but experience,” was not, in my view, the greatest of our jurisprudents, and, indeed, as I have tried to show in my recent book on Law Professors, Holmes probably did more than any other person to undermine our ideal of the rule of law.

The Judge is not without some clever wit and shrewd wisdom, but, in the end, it gets its subject wrong. A great Justice is not a political player seeking after power, a great Justice is one who follows the constitutional directive to place power in the hands of the people and their representatives. A great Justice does not deliberately frustrate the Constitutional scheme, as Anthony Kennedy, Sandra Day O’Connor, William Brennan, and Earl Warren clearly did. A great Justice does not wrongly and terrifyingly usurp the legislative power that belongs only to the people or their representatives. This is a view out of favor in the law schools, but when Justice Kavanaugh is confirmed and when he is followed on the bench by one or two other staunch conservatives, we just might see a revival of sensible jurisprudence. Collins and Skover would dismiss such traditional conservative jurisprudential views as hopelessly naïve in what they see as our postmodern, post-truth era, but on such naïve views does the foundation of our republic rest. The ideal of the rule of law, which these authors eschew, is the only thing that separates us from tyranny, and Collins and Skover do not sufficiently understand that tyranny can be exercised solemnly by men and women in robes as well as by a military coup or an arbitrary bureaucrat.